There was extensive discussion regarding the two in the oral arguments.
Seems the panel was partial to substantial burden.

kf6tac

12-07-2012, 2:33 PM

I think the distinction primarily lies in how obnoxious a law has to be before the courts will impose a heightened standard of review. Under a true strict scrutiny test, any law that burdens gun rights in any way automatically gets subjected to strict scrutiny (government must show compelling interest and that the law is narrowly tailored to accomplish that compelling interest). Under a "substantial burden" test, a court could decide that although a law in question imposes some small burden on the right to keep and bear arms, the burden is small enough (i.e., not substantial) that the government will not be required to justify it by showing a compelling state interest, narrowly tailored, etc.

krucam

12-07-2012, 2:38 PM

Isn't that what found its Genesis in Nordyke? I was wondering the same...someone will correct me, I'm sure.

Substantial Burden (SB) is applied as the 2nd prong after ?? in a 3 prong test. If protected (1), does the regulation create a SB (2)?

If yes, then (3) apply appropriate level of scrutiny TBD.
If no, then...?

Standing by...
:)

Librarian

12-07-2012, 3:22 PM

You can get a flavor of it from the Ezell opinion ...
Accordingly, if the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was under stood at the relevant historical moment—1791 or 1868—then the analysis can stop there; the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.

If the government cannot establish this—if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected—then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights. Heller’s reference to “any . . . standard[] of scrutiny” suggests as much. 554 U.S. at 628 29. McDonald emphasized that the Second Amendment “limits[,] but by no means eliminates,” governmental discretion to regulate activity falling within the scope of the right. 130 S. Ct. at 3046 (emphasis and parentheses omitted). Deciding whether the government has transgressed the limits imposed by the Second Amendment—that is, whether it has “infringed” the right to keep and bear arms—requires the court to evaluate the regulatory means the government has chosen and the public benefits end it seeks to achieve. Borrowing from the Court’s First Amendment doctrine, the rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right. See generally, Volokh, Implementing the Right to Keep and Bear Arms for Self Defense, 56 UCLA L. REV. at 1454 72 (explaining the scope, burden, and danger reduction justifications for firearm regulations post Heller); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1372 75 (2009); Adam Winkler, Heller’s Catch 22, 56 UCLA L. REV. 1551, 1571 73 (2009); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 979 80 (2009); Glenn H. Reynolds & Brannon P. Denning, Heller’s Future in the Lower Courts, 102 NW. U. L. REV. 2035, 2042 44 (2008).
Both Heller and McDonald suggest that broadly prohibitory laws restricting the core Second Amendment right—like the handgun bans at issue in those cases, which prohibited handgun possession even in the home—are categorically unconstitutional. Heller, 554 U.S. at 628 35 (“We know of no other enumerated constitutional right whose core protection has been subjected to a free standing ‘interest balancing’ approach.”); McDonald, 130 S. Ct. at 3047 48. For all other cases, however, we are left to choose an appropriate standard of review from among the heightened standards of scrutiny the Court applies to governmental actions alleged to infringe enumerated constitutional rights; the answer to the Second Amendment “infringement” question depends on the government’s ability to satisfy whatever standard of means end scrutiny is held to apply.
...
We proceed, then, to the second inquiry, which asks whether the City’s restriction on range training survives Second Amendment scrutiny. As we have explained, this requires us to select an appropriate standard of re view. Although the Supreme Court did not do so in either Heller or McDonald, the Court did make it clear that the deferential rational basis standard is out, and with it the presumption of constitutionality. Heller, 554 U.S. at 628 n.27 (citing United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938)). This necessarily means that the City bears the burden of justifying its action under some heightened standard of judicial review.
The district court specifically decided against an inter mediate standard of scrutiny but did not settle on any other, then sided with the City “even if” intermediate scrutiny applied. A choice must be made. The City urges us to import the “undue burden” test from the Court’s abortion cases, see, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S.833, 876 79 (1992), but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context, see Skoien, 614 F.3d at 641; id. at 649 (Sykes, J., dissenting); Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at 89 n.4; see also Volokh, Implementing the Right to Keep and Bear Arms for Self Defense, 56 UCLA L. REV. at 1449, 1452, 1454 55; Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. at 1376; Winkler, Heller’s Catch 22, 56 UCLA L. REV. at 1572.
In free speech cases, the applicable standard of judicial review depends on the nature and degree of the governmen tal burden on the First Amendment right and sometimes also on the specific iteration of the right. For example, “[c]ontent based regulations are presumptively invalid,” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992), and thus get strict scrutiny, which means that the law must be narrowly tailored to serve a compelling governmental interest, id. at 395; see also Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, Nos. 10 238, 10 239, 2011 WL 2518813, at *9 (June 27, 2011). Likewise, “[l]aws that burden political speech are subject to strict scrutiny.” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010) (internal quota tion marks omitted). On the other hand, “time, place, and manner” regulations on speech need only be “reasonable” and “justified without reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The Supreme Court also uses a tiered standard
of review in its speech forum doctrine; regulations in a traditional public or designated public forum get strict scrutiny, while regulations in a nonpublic forum “must not discriminate on the basis of viewpoint and ‘must be reason able in light of the forum’s purpose.’ ” Choose Life Ill., Inc. v. White, 547 F.3d 853, 864 (7th Cir. 2008) (quoting Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 07 (2001)).
…
Labels aside, we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self defense will require an extremely strong public interest justification and a close fit between the government’s means and its end. Second, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.

command_liner

12-07-2012, 3:26 PM

The significance is that the panel is unable, or unwilling to apply the plain letter of the
law. Both "strict scrutiny" and "substantial burden" are equally as non-constitutional
as the "left handed nose picking" method of analysis.

As has been pointed out many times, but quite well by Gura, the Constitution is already
a compromise, where the burned to the state has been taken into account. Nowhere in
the Constitution is there any support for this sort of nonsense.

randian

12-07-2012, 3:52 PM

Isn't "substantial burden" just another way of moving the goalposts? Assert such and you protect the state from having to make any kind of case. An irrational basis for law can be protected by some handwaving.

phrogg111

12-07-2012, 3:59 PM

"Shall not be infringed" means exactly what it says. Strict scrutiny should always apply, and "substantial burden" should mean changing the second amendment to the bill of rights.

Hanse Davion

12-07-2012, 4:05 PM

My understanding of substantial burden, as limited as it is, involves abortion. From what I was taught, Roe v. Wade originally used a typical test to determine if the government had been infringing on a right set forth by the court. However, certain state governments kept coming up with ways around this standard, such as coming up with new interests for the state, and thus writing a new law banning abortion in that state, circumventing the Wade decision. The Supreme Court decided they had enough of such tactics, and came up with the substantial burden analysis in Planned Parenthood v. Casey (What the standard for abortion issues is now). This way state interests were no longer a concern, and the key question was whether or not a law placed a substantial burden on the individual affected.

Lawyerly people please chime in here if I am mistaken. (I should really be studying for finals right now.....:D)

IVC

12-07-2012, 4:48 PM

The lower the standard, the less State has to justify a law.

The assumption is that the law is the "will of the people" through legislators, so it stands unless there is a constitutional issue.

OneGun

12-07-2012, 9:09 PM

My understanding of substantial burden, as limited as it is, involves abortion. From what I was taught, Roe v. Wade originally used a typical test to determine if the government had been infringing on a right set forth by the court. However, certain state governments kept coming up with ways around this standard, such as coming up with new interests for the state, and thus writing a new law banning abortion in that state, circumventing the Wade decision. The Supreme Court decided they had enough of such tactics, and came up with the substantial burden analysis in Planned Parenthood v. Casey (What the standard for abortion issues is now). This way state interests were no longer a concern, and the key question was whether or not a law placed a substantial burden on the individual affected.

Lawyerly people please chime in here if I am mistaken. (I should really be studying for finals right now.....:D)
Yes, that was how my ConLaw prof explained it. I don't know if you could call me lawyerly, though.